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Posted by Susan J. Levy

As a lawyer in 2009, there are certain things I am required to own: a suit, a briefcase, a laptop, and a Blackberry (mostly because I am not cool enough for an iPhone). Also, my chosen profession mandates that I take my cell phone everywhere, check my email constantly, and now, that I have the ability to text both my office and my clients.

I am also a native Pittsburgher. Having grown up in the City of Champions when the Steelers were busy winning the first four of their Super Bowl trophies means I am a died-in-the-wool Steelers fan (Penguin fan, Pitt Panthers fan, and yes, even a Pirates fan). You may wonder where I am going with this, but my Blackberry has allowed me to deepen my love of everything Pittsburgh in ways I never imagined. When I am stopped in traffic in downtown Atlanta, where I now reside, I can see what is happening at Steelers training camp or who the Pirates just traded. When traffic starts to move, it is tempting to finish the story and it is quite easy to imagine being 18 years old and wanting to read the text I just received. See Teens Texting and Driving, New York Times, July 27, 2009.

And, ironically, I am relatively technologically illiterate. My staff cringes when they hear me call for assistance. I am not “linked in” and how or why people check (yet alone post to) Facebook every day is a mystery to me. However, I would be the first one craving my Blackberry if I was a juror on a Friday afternoon trying to stay awake through a direct examination of an economist or jury charges after a two week trial.

All this drivel brings me to Florida, where a judge declared a mistrial after discovering that a witness was using his cell phone to send a text message about his testimony from the witness stand, to his boss, who was sitting at counsel table, while the lawyers and judge were preoccupied at a conference at the bench. An Arkansas judge recently confronted a situation where during trial, a juror posted about the case on his Twitter account. The losing party challenged the verdict, arguing that the juror’s posts demonstrated he was biased against the company. The judge upheld the verdict, finding that the Tweets were simply in bad taste.

Six years ago, in People v. Wadle, 77 P.3d 764 (Colo. App. 2003), the defendant in a child abuse case testified that she was taking the antidepressant Paxil at the time of the child’s death. Id. at 769. One night during deliberations, one of the jurors downloaded a description of Paxil from the Internet and shared it with his fellow jurors the next day. The defendant was eventually convicted and moved for a mistrial citing the juror’s Internet use.

The Colorado Court of Appeals insightfully noted that they:

recognize the problems created by the widespread use and availability of the Internet. Although the Internet has made information more accessible for the average person, the information obtained thereby may be misleading, taken out of context, outdated, or simply inaccurate. . . In view of the problems and dangers associated with the unsupervised use of the Internet, trial courts should emphasize that jurors should not consult the Internet, or any other extraneous materials, at any time during the trial, including during deliberations. Id. at 771.

To be continued . . .